Citizenship and Immigration Committee on Oct. 18th, 2010

[Imran Qayyum]

Absolutely.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Could you forward those through the chair? Thank you.

[The Chair, Conservative, David Tilson]

You can send that to the clerk's office.

I would like to thank the three of you for coming this afternoon. It's been a great help. Thank you.

We will suspend for a few minutes before the next panel.

[The Chair, Conservative, David Tilson]

Order, please.

I'm going to introduce the next two groups.

We have Mr. Warren Creates, an immigration lawyer. You're a group of one. We then have the three of you from the Canadian Association of Professional Immigration Consultants: Philip Mooney, past president; Timothy Morson, policy director; and Tarek Allam, the chapter president of Quebec. Welcome to all of you.

Mr. Creates, you have up to seven minutes, sir.

[Warren Creates, Immigration Lawyer, As an Individual]

Thank you very much.

Good afternoon, everyone.

I'm a specialist certified by the Law Society of Upper Canada here in Ontario. I'm a specialist in immigration, citizenship, and refugee law. I was previously in-house counsel to the federal tribunal, the Immigration and Refugee Board, which is the largest tribunal in Canada and has the exclusive jurisdiction to adjudicate refugee immigration appeals, detention reviews, and admissibility hearings.

I have a number of recommendations. I prepared a brief. Hopefully it has been distributed to you.

[The Chair, Conservative, David Tilson]

It hasn't. Unfortunately it's just in English. We will have it translated, and all members of the committee will get it at a later date.

[Warren Creates]

Good. I can send it electronically if you want.

[The Chair, Conservative, David Tilson]

They cannot look at it now.

[Warren Creates]

I'm sorry I didn't bring a translation.

[The Chair, Conservative, David Tilson]

It's quite all right.

[Warren Creates]

I only got notice of this on Thursday, so I did what I could to get prepared for the time we have together this afternoon.

Obvioiusly it's clear to all of us that we need robust laws, we need.... Unfortunately, we've come to a point in our history in this country where we need to criminalize the provision of immigration advice by those who are unauthorized to do so.

Twenty-five years ago I didn't think I'd be saying that, but it's obvious and clear to me now--and perhaps to everyone at this table and outside this room--that it's now required. Without it.... Obviously a second part of that is we need a very robust organization to be the watchdog for those immigration consultants who do become authorized.

I have a list of eight recommendations in my brief and I just want to touch on them in the limited time that I have, very quickly.

First of all, I take issue with the name of the legislation. This is not just a question of cracking down on crooked immigration consultants. If it were only that, we would be dealing with a far more robust piece of legislation. What we're dealing with in Bill C-35 are those who are unauthorized, and criminalizing their conduct.

So I recommend a name change, and I think this committee should look very carefully at that. Although there are headlines in the proposed name, I don't think it really accurately describes what this piece of legislation is doing.

Second, putting a five-year limitation period on the investigation, charge, and prosecution of offences that are chosen by election to be summary conviction offences I think is wrong. If we want robust legislation that's going to deter those who would be inclined to practise unauthorized practice in immigration law, it should be open-ended. Why put a five-year limitation clause on it? I just don't see the public policy behind it. If the objective of this legislation is to deter criminal conduct, then it should be forever over the heads of those who engage in it.

Third, I obviously--like all--want to see a new watchdog. It must be robust, independent, arm's length from the government. It must be professional. It must be fully staffed and resourced. The panel before us and others have commented before this committee on the ineffective nature of that watchdog organization, and a lot needs to be done to approve one that's going to be better resourced.

Fourth, I like the authority given to the cabinet to make regulations requiring the watchdog to give the minister information. That's of particular interest because it has the power beyond the minister, and that's often important to have. It was lacking in the last piece of legislation. It was lacking in the last watchdog, and privacy was I think given as the shadow, the reason why things couldn't be shared with the minister. So I like that.

I have some other comments, though, about what needs to be done to resource this properly. It's not in the legislation, it probably can't be, but our overseas and Canadian-based officers need tools to detect and monitor fraud. It's not enough just to criminalize it; there has to be an enforcement opportunity. Training is needed, sophisticated tracking, and audit software. There needs to be an investment by the Canadian government in those tools.

Sixth, I think the bill should contain a provision that requires everyone seeking status or renewed status in Canada to disclose the use of a representative. That was the recommendation—I think it's number five—in the June 2008 standing committee's review of the problems of the past, and I believe that should be in this bill now. So I think everyone seeking some kind of status in Canada who files an application must be required to disclose that they use a representative.

Seventh, there has to be an investment in public awareness. A media campaign and government website updates must be undertaken to warn the public of the risks and of the criminality of both using unregistered consultants and committing immigration fraud.

Finally, number eight, there needs to be encouragement and even in appropriate cases immunity from prosecution for those who've been duped, for those who have themselves committed fraud, and for employees of unscrupulous consultants to come forward with their evidence against bogus consultants.

Thank you very much. It's been a privilege and an honour to be invited to share my thoughts with you.

[The Chair, Conservative, David Tilson]

We've enjoyed your presentation, Mr. Creates.

Mr. Mooney, you have up to seven minutes, sir. Thank you.

[Philip Mooney, Past President, Canadian Association of Professional Immigration Consultants]

Thank you very much.

It's a pleasure to be here again before the committee and to welcome more new faces than at any other time I've had the pleasure to present. Welcome to everyone.

We also prepared a detailed brief and submitted it, but I believe it's in the process of being translated.

I'd like to make some general comments on the legislation. Then I'll turn it over to my associate to make some specific recommendations on one of the particular items in the legislation, and certainly allow as many questions as possible.

Just for the record, I'll say to everybody, “That's a great question, thank you for your question”, so we don't have to repeat that. We all went to the Bill Clinton school of political answers.

The Canadian Association of Professional Immigration Consultants has worked for and supported the concept of the regulation of immigration consultants for 25 years. That is why CAPIC supports the intent and the main thrust of this bill. It is not only in the interest of consumers and the public to regulate immigration consultants, but in the interest of immigration consultants themselves.

Like many professionals, we hold ourselves to very high standards. We want to see these standards officially sanctioned and subjected to strong and enforceable regulation. Bill C-35 grapples with the very complex issue of ghost agents. The exploitation of vulnerable migrants by unscrupulous agents and unqualified intermediaries is a major global problem, part of a criminal industry worth billions of dollars. It causes incalculable harm to victims and their families. CAPIC has a number of recommendations concerning the enforcement, control, and prosecution of ghost agents.

Bill C-35 also addresses the major shortcomings identified by the standing committee in two separate reports in 2008 and 2009 on the way the Canadian Society of Immigration Consultants was constituted in the first place. They recognized that the absence of any statute governing CSIC simply makes it impossible for the society to enforce its rules on non-members, and impossible for the minister and CIC to hold the society accountable or influence the society’s internal functioning. They also acknowledged the many legitimate complaints of CSIC members about CSIC's governance.

You recommended that a statutory body be established to replace CSIC. While CAPIC appreciates the degree of progress represented by Bill C-35 in making certain activities a violation of the Immigration Act--and we credit the department's ingenuity in bringing it forward in that manner--we recommend that the option of a statutory body be kept open for the future.

CAPIC has led the fight to resolve the issues of bad consultants and a poorly functioning regulator, and has continued to make recommendations for positive changes. Currently we are leading a group of concerned practitioners in preparing a bid to set up a new body, which we are calling “The Better Regulator.”

We have learned from the mistakes made in the past and from six years of imperfect regulation. We are doing this in an open and transparent manner, as volunteers, and we will ensure that our proposal is very clear on accountability and effectiveness.

Our detailed report makes several recommendations that we hope you will consider seriously, including specific recommendations that deal with third-party service providers. My colleague will explain those recommendations shortly, but I want to bring one more issue to the table first, and that is the issue of respect.

Hard-working, ethical consultants who ably assist tens of thousands of newcomers to come to Canada deserve the respect of the department and the government, as well as the respect of the general public. They choose every day to follow the rules, to serve the interests of their clients, and to forgo the fast buck and easy money that lures the unscrupulous. They do not need special recognition, but they do deserve the same respect accorded to all hard-working Canadians, be they auto workers, teachers, politicians, or millions of others.

Tackling the problem of ghost agents requires a better working relationship between all stakeholders. To be coherent, the policies that will flow from Bill C-35 must also recognize the role that authorized representatives play in support of legal immigration. It is self-defeating to deplore the ghost agent phenomenon on the one hand, while discouraging the use of authorized representatives on the other, as CIC does with its website messages. The role of authorized representatives must be validated, not denigrated; otherwise, what’s the point of it all?

Finally, as an additional sign of respect, and in agreement with my colleague who spoke earlier—thank you for stealing my thunder--we ask that you consider changing the title of this act. For hard-working, ethical consultants, it will be very difficult to accept the fact that for years to come they will be regulated by an act that specifically refers to everything they are not. The alliteration is appreciated, but the perceived disrespect is not.

Thank you.

I'd like to turn this over to my colleague, Mr. Morson.

[Timothy Morson, Policy Director, Canadian Association of Professional Immigration Consultants]

Mr. Chairman, I'd like to briefly address the issue of designated entities under the proposed subsection 91(4), and the need for a definition of what constitutes immigration advice.

CAPIC recognizes that the growing number of arrangements between visa offices and visa application centres allows for a measure of efficiency and cost savings. VACs, as they are called, are private agencies officially appointed to assist clients in filing their applications with visa offices, for a fee.

The services offered by VACs are actively promoted on visa office websites. Officially, VACs may only assist with form filling and filing of the application. The VAC agreement between VFS Global in India and the Canadian High Commission in New Delhi states that “The Service Provider...will advise the client as to any apparent shortcomings in the application”. This agreement explicitly acknowledges VFS's role in providing advice, and it explicitly recognizes that clients may need help with the process. Our question is where exactly a line is drawn between immigration form completion and advice.

The VACs are not qualified, in any way, to offer immigration advice. If a VAC completes or checks a form, does that constitute advice? Is it possible to complete a form without offering advice?

These questions are important because, besides VACs, there are many specialized sectors that are peripherally involved in the immigration business: travel agencies, education agents, human resources recruiting firms, all offer incidental immigration services. A badly completed form can unleash a whole chain of consequences that could be detrimental to an applicant, including the outright refusal of the application.

If completing an application form does not constitute advice, then by what measure can any third party be prevented from charging a fee for completing a form?

It is not clear how Bill C-35 addresses this issue. If it does not address the issue, then one can be reasonably assured that ghost agents will exploit it.

CAPIC recommends, at a minimum, that Bill C-35 be amended to include a definition for advice, and that it require VACs to publish clear disclaimers to the effect that they are not authorized to provide immigration advice, with links to those regulatory bodies whose members are so authorized, as is the case in the U.K.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Morson.

We now have seven-minute rounds. Mr. Wrzesnewskyj is first.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Thank you, gentlemen.

Mr. Mooney, you made a comment, which I think is quite a serious allegation, that on CSIC websites the role of authorized agents is denigrated. Could you provide clear examples of that, and if you can't do it at this time, could you provide this committee--

[Philip Mooney]

You're talking about CIC's website?

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

That's how I understood it.

[Philip Mooney]

Yes. On almost every single form, certainly even on the front page, there's a clear indication to individuals who are inquiring about immigration services that they do not need or require the services of an immigration consultant. It then goes on to explain a bit about who's regulated.

On certain websites around the world, in different visa posts, the disclaimer is even stronger.

The general attitude that this pervades is that this isn't your first choice or option when the decision should be--

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Well, the language you used was quite strong. You said “denigrated”. That's a word you used; that's your terminology. So if you could provide actual clear examples of that--

[Philip Mooney]

I'd be happy to.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

--to the committee, I'm sure it would then be circulated.

[The Chair, Conservative, David Tilson]

To the clerk, Mr. Mooney.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

With regard to the other question I have, you heard the presentation from the panel that preceded you. They were quite forthcoming in saying that CMI is actually a for-profit subsidiary of a not-for-profit structure. I understand, looking through their materials, that there's a board of nine directors.

Are you familiar with their selection process? Is there advertising across the country in the industry?

[Philip Mooney]

Are you talking about appointment of CMI directors?